Maine Court Fight Pits Farmers Against State and One Another

Video Dan Brown is a Maine farmer who was sued by the state for selling milk without a license. On Tuesday, Mr. Brown lost an appeal he had made to the state’s highest court.

By JESS BIDGOOD

June 18, 2014

BLUE HILL, Me. — When Dan Brown quit his job driving trucks and began to work on his wife’s family homestead here about a decade ago, he was looking forward to a quiet life of farming. He began raising chickens and growing vegetables, and watched happily as a calf named Sprocket thrived. The Browns built a farm stand and began selling unpasteurized milk and eventually other products, like jam and salsa.

With the addition of a few slick luxuries, like a hot rod and a flat-screen TV, they were pursuing a lifestyle that has drawn scores of people to this rocky peninsula. They followed in the footsteps of the back-to-the-landers who began flocking here decades ago, and the 19th- and early-20th-century rusticators who sought a haven away from the industrial cities of the east.

But a few years after the Browns began selling, state regulators saw a problem. It is legal to sell unpasteurized milk in Maine, but because Mr. Brown had never purchased a $25 milk distributors’ license and had not properly labeled his milk, the state argued that his farm was breaking the rules and needed to be stopped.

Dan Brown with Sprocket at his farm in Blue Hill, Me.

Brian Feulner for The New York Times

On Tuesday, Mr. Brown lost an appeal he had made to the state’s highest court after he fought a lawsuit filed by the State of Maine in 2011. It was a blow to a small but vocal rebellion among farmers and consumers who say that burdensome state regulations are keeping the most local form of food — which, around here, has near-religious significance — away from consumers. The case has pitted the state against some small-scale farmers and stirred a feud between new homesteaders and longtime family farmers.

“This isn’t about Dan Brown or Farmer Brown anymore,” Mr. Brown, 46, said on a recent morning. “They’re telling you that you don’t have the right to come get milk from a farmer.”

Mr. Brown said he was told by a state official in 2006 that he would not need to be licensed or inspected if he sold from his farm and did not advertise. So when state regulators from the Department of Agriculture, Conservation and Forestry came calling a few years later, he said, he rebuffed them (colorfully, at times), unwilling to spend money on the upgrades he would need to qualify for a milk distributors’ license.

“I don’t need a $40,000 milk room to produce safe, healthy milk,” said Mr. Brown, who asserts that the decision to buy his milk should be left to customers who know him, not to the state.

The state says the licenses are necessary because improperly handled milk can carry food-borne illnesses. “Our inspectors work closely with applicants to help them comply,” said John C. Bott, the director of special projects and communications at Maine’s Agriculture Department.

In 2011, the State of Maine and the commissioner of its Agriculture Department filed a lawsuit against Mr. Brown, alleging that he had sold unpasteurized milk without the proper license and labeling, and operated a food establishment without a license to do so. Last year a judge agreed, ordering him to pay a fine of about $1,000 and to stop selling. Mr. Brown has since filed for bankruptcy.

“It was ridiculous, ludicrous and maddening,” said Florence Reed, a neighbor who directs an organic farming nonprofit and who was a customer of Mr. Brown’s. “Dan’s milk is what they choose to protect us from?”

Last month, Mr. Brown went to the state’s highest court, in Portland, for a hearing on his appeal. He was accompanied by a bevy of supporters who want farm-to-consumer sales to be free of state and federal regulation that, they say, is intended for supply chains that are much more complex than theirs.

Mr. Brown was the subject of a lawsuit for his sale of unpasteurized milk without proper labeling or licensing.

Craig Dilger for The New York Times

In 2011, voters made nearby Sedgwick the first town in Maine to pass a so-called food sovereignty ordinance, which grants an exemption from food safety rules to farmers selling directly to consumers. Blue Hill soon followed. There are now 11 towns in Maine with such ordinances, and similar measures have popped up in states including California and Vermont. Pete Kennedy, the director of the Farm-to-Consumer Legal Defense Fund, said this was the first litigation involving one of the ordinances, so advocates were watching closely.

“We’ve gotten them out of our bedrooms and our voting booths,” said Betsy Garrold, the head of a group called Food for Maine’s Future, before Mr. Brown’s hearing. She then said they needed to get the state “out of our kitchens.”

Mark Randlett, an assistant attorney general who was arguing the state’s case, said Maine needed to be able to regulate food sales to protect public health. “The department really does support local food sales and these kinds of transactions between farmers and individuals,” but not without rules, Mr. Randlett said last month.

Mr. Brown’s lawyer, David Gary Cox, argued that the state could not change the rules on Mr. Brown, since officials had first told him he would not need a license, and invoked the Blue Hill ordinance in his defense. The judges said that public health ramifications outweighed Mr. Brown’s concerns about obtaining a license and that the ordinances were pre-empted by state and federal law. Advocates of the ordinances said that they expected towns would nevertheless continue to pass them, and that they would seek to pass a state law that would create some regulatory flexibility for small-scale dairy farmers.

Supporters rallied last month for Mr. Brown, who lost an appeal in court on Tuesday.

Craig Dilger for The New York Times

“We’ll continue to work with the legislators who have supported us,” said Heather Retberg, 40, a farmer from Penobscot, Me., who sells raw milk without a license to a private buying club. Tuesday’s ruling, she said, “puts us in an uncertain spot again.”

But other farmers were worried that relaxing food safety rules for small-scale farms could endanger the industry, and were frustrated by Mr. Brown’s case and its supporters.

“It’s a ragtag bunch of individuals who have come into the state of Maine from other places, who have this vision of a paradise where there’s just no regulation and no law,” said Joan Gibson of Milky Way Organic Farm in Levant, Me., which has been in her husband’s family since 1837. “There needs to be some structure in place.”

Kevin Poland, 61, has a farm in nearby Brooklin, Me., and said he was ejected from a local online food distribution program after he raised questions about some other farmers’ lack of labels and licensing. “They’re going to ruin the local food movement,” he said.

Mr. Brown had been lobstering to make ends meet but stopped so he could tend the farm when his wife, Judy, fell ill the morning after their State Supreme Court hearing. They will focus on homesteading for now, Mr. Brown said, but will pare down, and he will seek other sources of income. On Wednesday, they were planning to make pizza with mozzarella from their milk.

“The farm can change,” Mr. Brown said. “We can survive; it’ll just be more of a farmstead for our life, not our livelihood.”

Correction: June 24, 2014

An article on Thursday about Dan Brown, a Maine farmer who is battling the state over the unlicensed sale of unpasteurized milk, misidentified the farm operated by Joan Gibson, who supported state licensing and testing of small dairies. It is Milky Way Organic Farm in Levant, Me., not Tide Mill Organic Farm in Edmunds, Me.